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July 9, 2011

Why the Second Amendment is not (and should never be?) "part of normal constitutional law"

Earlier this week, the Seventh Circuit issued a lengthy and detailed ruling in Ezell v. Chicago (available here), which issued a preliminary injunction against Chicago gun range ban based on the Second Amendment. The Ezell ruling is both interesting and intricate; in this extended new post over at The Volokh Conspiracy, Second Amendment scholar and fan David Kopel astutely explains how and why "Ezell v. Chicago is a tremendously important case for Second Amendment doctrine."

I share Kopel's view about the importance of the Ezell opinion, and I recommend highly his summary and assessment of Ezell in his astute post. However, as evidenced by the title of my post here, I want to take issue with a key assertion Kopel makes at the start of the (otherwise astute) concluding paragraph of his post. Kopel finishes with these summary observation about what Ezell tells us:

In short, the Second Amendment is part of normal constitutional law. The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights. Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times. As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

The problem I have is with the claim that Ezell demostratrates that the Second Amendment is "part of normal constitutional law," principally because Ezell distinguishes the Seventh Circuit's approval in Skoein of the federal crime prohibiting certain misdemeanants from possessing guns (basics here) by emphasizing that only "law-abiding, responsible citizens" get full Second Amendment protection. If Second Amendment rights and jurisprudence truly depends and pivots on who is deemed a "law-abiding, responsible citizen," then the Second Amendment is not part of normal constitutional law because I know of no other constitutional right that only protects "law-abiding, responsible citizens."

Of course, a citizen's constitutional rights can and often are diminished or extinguished as a result of conviction and sentencing for a crime. Incarcerated prisoners, in addition to obviously losing many liberty rights, also generally have no Fourth Amendment rights and have very limited First Amendment rights. Similarly, duly imposed conditions of probation and/or parole that are part of a formal criminal sentence can lawfully result in restrictions on otherwise constitutional activities and liberties.

However, as I have explained in some prior posts, I am not aware of any other fundamental rights expressly protected by the Bill of Rights which are forever lost or forfeited whenever a person has ever once previously broken the law or been less than "responsible" in their behavior. Indeed, I think we would be deeply troubled by a constitutional jurisprudence that held that once a citizen was ever convicted of any crime, even just a misdemeanor (e.g., speeding, littering), then that person never again has any First Amendment right to free speech or to attend church or any Fifth Amendment right to prevent the taking of their property or any Sixth Amendment to confront witnesses or to counsel in a criminal trial.

In posts in the wake of Heller, I had predicted and feared that Second Amendment doctrine would start distinguishing between good "law-abiding, responsible citizens" people who get protected by this fundamental constitutional right and bad "other citizens" who get little or no constitutional protection. The important Ezell opinion suggests the doctrine is developing in just this way, and that reality leads me to balk when Kopel asserts that "the Second Amendment is part of normal constitutional law."

Or, to cast my concerns in a different light, I suggest we all should be very concerned if and when "normal constitutional law" starts to embrace and enforce significant distinctions between good "law-abiding, responsible citizens" people who get protected by constitutional rights and bad "other citizens" who get little or no constitutional protection. I genuinely fear that this kind of "normal" constitutional doctrine, which is now emerging in the Second Amendment setting, very well could start a path toward the significant formal and/or functional reduction of many fundamental constitutional rights and liberties.

Comments

A very good observaion that I agree with. We better be good or we will have no const. rights.

Posted by: James | Jul 9, 2011 3:41:02 PM

The fix is to clarify and strictly limit existing law on what constitutes a disabling felony (it should be truly violent in that someone was hurt or at risk of being hurt through direct action and, not to diminsh unarmed assault, simple assaults without weapons or serious harm to teh victim should be on the edge, definitely not just crimes involving a car chase). That inclues scrapping Lautenburg on DV, if it was severe enough DV to apply there will be an uunderlying prosecutable felony as above.

We also need to ensure that sound policies for having rights restored exists and is funded at the state and Federal (looking at you Congress) levels.

Matthew Carberry

Student and gun rights person

Posted by: Matthew Carberry | Jul 9, 2011 4:47:39 PM

Once again Professor Berman is right on target but there is much, much more to this. Defending the rights granted under the second amendment is but the tip of the iceberg. Because this is a fundamental right spelled out in the constitution the task, while difficult, is made somewhat less so simply because the constitution does address the issue. On the other hand, most ex-offenders especially those with felony offenses, are denied many of the avenues that they may use to regain their rightful place in society.

To quote Congressman Steve Cohen who has just reintroduced his "Fresh Start Act":

“Even if you commit a non-violent offense, you could very well face a life sentence,” “That’s because the stigma of your conviction will follow you for the rest of your life. Employment, education and housing opportunities – the very things necessary to start your life over – can all be denied because of a past conviction.

My bill (HR2449) would give non-violent offenders who have turned their lives around a real chance to start over again.”

While this bill only applies to first time non-violent offenders, it is a good start. In addition if the legislation, as the wording specifies, "restores the individual concerned, in the contemplation of the law, to the status such individual occupied before the arrest or institution of criminal proceedings" this should also include all rights guaranteed by the constitution that may have been stripped due to the conviction including second amendment rights.

Posted by: Thomas | Jul 9, 2011 6:42:07 PM

I may be new to constitutional law as a subject of intense study, but I have pretty good ideas when it comes to criminal law, sentencing, and policy. Given this lack of formal law school education, I have a question:

When did the "shall not be infringed" part of the 2nd Amendment become infringed, and how did this law pass Supreme Court scrutiny in its time? I am not a (insert direction)-wing nut, but I am having a hard time logically coming to a conclusion which would permit a Constitutional Amendment to be infringed for life (On a side note, there is also the right to vote, but that can be reinstated quite easily most places).

How is it that this is the single Constitutional guarantee which does not reinstate once incarceration and parole/probation/supervision expire? How did the language of "law abiding citizen" take precedent over "shall not be infringed"?

"How is it that this is the single Constitutional guarantee which does not reinstate once incarceration and parole/probation/supervision expire? How did the language of "law abiding citizen" take precedent over "shall not be infringed"?"

An excellent question. I really hope someone can answer it.

Posted by: Thomas | Jul 9, 2011 10:30:25 PM

How is it that this is the single Constitutional guarantee which does not reinstate once incarceration and parole/probation/supervision expire? How did the language of "law abiding citizen" take precedent over "shall not be infringed"?"

An excellent question. I really hope someone can answer it.

Phillip Zimbardo wrote in the Lucifer Effect:

"At the core of evil is the process of dehumanization by which certain other people or collectives of them, are depicted as less than human, as non-comparable in humanity or personal dignity to those who do the labeling. Prejudice employs negative stereotypes in images or verbally abusive terms to demean and degrade the objects of its narrow view of superiority over these allegedly inferior persons. Discrimination involves the actions taken against those others based on the beliefs and emotions generated by prejudiced perspectives.

Dehumanization is one of the central processes in the transformation of ordinary, normal people into indifferent or even wanton perpetrators of evil. Dehumanization is like a “cortical cataract” that clouds one’s thinking and fosters the perception that other people are less than human. It makes some people come to see those others as enemies deserving of torment, torture, and even annihilation."

You see, Bill, Federalist, MikeinCT, etc see that they KNOW what is truth, what is a lie and what is good for this country. This is PRIDE out of control.

I may not know the last vestiges of "THE LAW", (which is a serious study for those who choose to obstruct the obvious) but as a 30+ year scientist and engineer, I see where our countries political leaders lie every day. Why should judges, politicians, prosecutors, public unions and LE be any different? They have been suckling at the private largess so long that they have killed the goose that laid the golden egg (our wealth).

Posted by: albeed | Jul 9, 2011 11:27:24 PM

English correction, before I am seen as a libertarian barbarian:

"our country's political leaders lie every day."

PS:

This is serious business, and our educators and main stream media are more than worthless, they are money grubbing w__res. WE DO NOT hold our elected representatives responsible for their actions.

Why are so many Americans so stupid and ignorant?

Posted by: albeed | Jul 9, 2011 11:59:52 PM

personally i think that anyone who thinks like this!

"The problem I have is with the claim that Ezell demostratrates that the Second Amendment is "part of normal constitutional law," principally because Ezell distinguishes the Seventh Circuit's approval in Skoein of the federal crime prohibiting certain misdemeanants from possessing guns (basics here) by emphasizing that only "law-abiding, responsible citizens" get full Second Amendment protection."

WELL they need someone to come visit and who will EXERCISE THEIR 2nd Amendment right and remove them from this country!

they SO OBVIOUSLY DON'T BELONG HERE!

Posted by: rodsmith | Jul 10, 2011 12:41:59 AM

The way I see it, politicians are trying to whittle away the Constitution is by transmogrifying the Bill of RIGHTS into the Bill of PRIVILEGES, which they then mold it in any shape, or form that they will, without actually passing a Constitutional amendment. The courts are only too happy to oblige the Congress. The disenfranchisement of citizens' Second Amendment right has been progressing (should I say retrogressing?) since the passage of Safe Streets Act, which originally applied only to violent and drug crimes, but later expanded under the Crime Control Act (?) to include even nonviolent, white-collar offenses. Congress has only been inexorably expanding the ambit of this disenfranchisement provisions. I believe (in fact, very strongly) all persons (i. e., convicted of a crime) should get ALL their rights back once they have paid their debt to society. The problem is the failure to recognize that there are only two kinds of persons in this world - convicted felons and unconvicted felons. The unconvicted felons are the ones who have undoubtedly committed offenses under the law (state, or Federal), but have not yet been caught. A good book to read is Three Felonies a Day by Harvey A. Silverglate. While that book could be seen an embellishment of the plight of the defendants represented by the authors, I personally know that a vast majority of the issues presented in this book are real. It is utterly disgusting to see how our laws (and most of all, our precious Constitution) is perveterd. Some jurists call the Constitution a "living, breathing document." Shame on them!

Thomas:

I guess by "law-abiding citizen" refers to someone who has CONTINUOUSLY (i. e., forever) abided by the law, rather than the present-continuous sense that the language purports to imply. I am afraid that the interpretation is in the eyes of the beholder, or more aptly, in the lacuna of the collective Congressional brain.

Posted by: John Marsahll | Jul 10, 2011 1:31:40 AM

I agree with you in part, and disagree in part.

First, felons are denied the right to vote, and the Supreme Court upheld this in Romer (though this is not listed in the Bill of Rights, I would argue that it is quite fundamental).

If the police know a person is a convicted felon, this knowledge can feed into the calculus for reasonable suspicion, and probable cause (weakening 4th Amendment rights). After an arrest, this information would be brought to the attention of a magistrate will usually result in a detention order (weakening 8th amendment rights). Even the right to speedy trial considers what threat a person may pose to the community.

This bifurcation of rights, which at first blush may seem unfamiliar, finds a long pedigree in our constitutional law jurisprudence–process is varied with respect to fundamental constitutional rights based on a person’s propensity for violence.

This work builds on my article, The Constitutional of Social Cost (forthcoming in Harvard JLPP): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1763830

I am afraid that you are making a sweeping statement that right to vote and right to bear arms are not listed on the Bill of Rights. I beg to differ with you, because whatever rights that were "not enumerated" are governed by the IX and the X Amendments to the US Fdereal Constitution. (Amendment IX: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.") The critical word and phrase are the the "rights" that are "retained by the people." Felons once had these "fundamental rights," before they were convicted and they cannot be "den[ied]" these "rights" by Congress, or anyone else, for that matter. Amendment X reserves the powers not delegated to Congress or prohibited to the states, are actually reserved to the people. (Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.") As I see it, the ambit of the Commerce Clause has GOT to be significantly circumscribed to restore the true meaning of the Constitution, and not to mention its grandeur. The undue expansion of the Commerce Clause's legality is just spilling over to the fundamental rights and it should be declared unconstitutional.

What I do not know, off the top of my head, is whether this disenfranchisement will withstand a Constitutional challenge on a strict-scrutiny review vis-a-vis the IX and X Amendments to the Constitution. (In my personal opinion, it should not.) The XIV Amendment "literally" speak of "priviliges and immunities: and not really the rights.

I do not even understand why the State of Colorado would enact a constitutional amendment to arguably protect the "sexual-orientation minorities," when under the Federal Constitution, they are deemed to have equal protection as all other persons. Even if a local jurisdiction were to enact a law discriminating the minority, it could always challenge that law's Constitutionality. I think that the Romer vs. Evans case was a waste of the Court's resources. As you can clearly see, this Court's majority comprised the "living Constitutionalists." (Justice Kennedy has always been a wildcard and goes with his "thought of the day" - sometimes getting it right, and at other times, not.)

Posted by: John Marsahll | Jul 10, 2011 3:19:48 AM

Josh:

I mistakenly included the "right to bear arms [is] not listed on the Bill of Rights" in my post. I only meant to refer to your statement "felons are denied the right to vote." I apologize for the mix-up. Mea culpa!

Posted by: John Marsahll | Jul 10, 2011 3:27:22 AM

Thomas:
The phrase "rather than the present-continuous sense" should be corrected to read "rather than the present-continuous tense." Sorry!

Posted by: John Marsahll | Jul 10, 2011 4:23:25 AM

I go farther. Decent citizens should be made to take weapons training, and to carry concealed weapons. There should be a duty to kill upon coming on a violent criminal. If you fail to discharge the weapon at the criminal, there should be a civil fine. If you kill the violent criminal, there should be a substantial money reward, for example, $1000 for a regular gang banger, or up to $million for a serial killer. Unemployed people can make ends meet by killing violent criminals with their posted prices. Join a violent criminal gang, expect the neighbors to try to make some money. Right now, only the biased, pro-criminal lawyer is making money off criminals. The result, 20 million crimes a year, with 5 million being violent due to the utter failure of the criminal law. One may not even verbally criticize the criminal without being accused of verbal abuse and losing one's job. That is how far the pro-criminal lawyer has gone to intimidate the average citizen. Now, the implication is that violent criminals should not lose their right to carry guns.

"The phrase "rather than the present-continuous sense" should be corrected to read "rather than the present-continuous tense." Sorry!

LOL. No problem John and you know, it makes "sense" either way you say it. The bottom line is that, in the eyes of some, there is not nor should there ever be any redemption for anyone who has committed any crime. For these hardliners, seriousness of offense has no place in the discussion.

Like you John, I spent the best part of a 40+-year career in my chosen field as an engineer. I think that the thought process of one with an engineering background is vastly different from many who post here.

As a designer, the engineer starts with a firm foundation. Once the foundation is solidly in place, the engineer then begins adding increments supported by the rock solid foundation. If an increment does not meet the structural "integrity" test the engineer redesigns the increment. He does not chip away or "jury rig" the foundation in order to "justify" the failure of the increment to support its own weight.

Of course, there will always be "end users" with a vested interest in the increment who will encourage the use of any method that will make their pet increment work. These end users, in general, have no clear understanding of the importance of the basics of "construction". They are more than willing to risk the total collapse of the structure as long as they, at least temporarily, achieve their goals.

I very strongly believe that the "end users" analogy applies perfectly too many of those in the legal profession today. They stack law after law after law upon the rock solid foundation of the United States Constitution. A foundation that has pretty much stood the test of time despite the efforts of a few to chip away at its basic principles. This constant chipping away continues to this day and the second amendment issue is a prime example. This is especially prevalent in the federal criminal justice system where overcriminalization is rampant.

This is borne out by the fact that the Heritage Foundation, a very conservative group, publishes a regular newsletter on the issue and that there have been at least two hearings on the subject in the last two years.

There is little question that there are individuals who are just "Bad to the Bone" to quote a George Thorogood title and that there is little chance for their redemption. However it is a travesty that the legal system in this country continues to paint everyone who has committed an offense the same. Thos who prove themselves worthy of a second chance should be given every opportunity to regain a productive place in our society. That opportunity is exactly what legislation such as that introduced by Congressman Cohen does. No free ride, just an opportunity.

Posted by: Thomas | Jul 10, 2011 10:53:14 AM

"forever lost or forfeited whenever a person has ever once previously broken the law or been less than "responsible" in their behavior"

If littering or a speeding ticket can lead to forever losing the right to own a gun, it's an absurd unconstitutional rule. I would need to see how this test (which speaks of "full" rights, suggesting -- as with others -- some people like felons can have restrictions, if the restrictions are legitimately drawn) is applied in practice.

When the 1A was first given some real bite in the 1920s and 1930s, the courts went slow, leaving open for years many restrictions now deemed absurd. Now, any restrictions seems troubling to people. It would be a questionable policy not to take a similar "take it slow" technique for the 2A. This includes not dealing with hard cases such as the rights of lawbreakers until the case comes.

When a state "forever" denies litterers the right to own a gun and a court upholds the ban (as compared to some petty drug dealer or domestic violence offender having a revokable ban put on them), come back to me.

a few points. The 14th am specifically permits the right to vote to be withheld from those convicted of crimes. It therefore is not a good comparison for rights set out in the Bill of Rights, none of which can be completely abrogated upon conviction. In fact, the eight amendment is designed to protect those convicted, as is the double jeopardy protection in the 5th am. Further, even unenumerated fundamental rights are not completely abrogated upon conviction, even while in prison! See Turner v. Safley. So 2nd am is shaping up to be very different

Posted by: pat | Jul 10, 2011 1:06:23 PM

Thomas:

It is indeed very interesting to hear that you are an engineer. I do not know how many of the posters here know this secret - if you are an engineer, or a scientist (heck, for that matter, even a medical doctor), litigation counsel will try their damnedest NOT to pick you as a juror, lest you think highly rationally, analyze meticulously, and stick just to the facts; are dispassionate, and let the facts lead you, etc. (the list goes on like an Energizer bunny). They also bar attorneys from jury, because they are THOUGHT to know the law and lead (or mislead) the rest of jury. We really need more analytical people like these on the jury. I also noticed another poster on this blog - Alabeed - stated that he was an engineer/scientist. I can clearly understand his viewpoint. For the most part, engineers and scientists tend (of course, there are exceptions to everything) to be unbiased, factual, precise, and skeptical of everything.

I say that all felons should get ALL their rights back (yes, including the right to serve on the jury). On the question ex-felons’ serving on the jury: They know what prison life is like; I believe that they would be very hesitant to hastily send someone to prison. Ultimately, I believe that they too will do the right thing under the law. On the question of felons with a “history” of violence and the fear of their getting their “rights” back, I offer this: If a person, who has previously been convicted of a violent felony, is subsequently convicted of another violent felony, then the offense of conviction could always include a mandatory minimum (as many of the narcotics and firearms offenses already do) sentences. By eradicating these fundamental rights altogether at one fell swoop, we are only lumping all the offenders in one broad category, which is not at all conducive to a productive society. It is not as if these “violent” felons cannot and do not get their hands on firearms anyway! Everyone knows the saying: “Where there is a will, there is ALWAYS a way.” (For one, Mexico is supposed to have one of the strictest gun laws in the world, but look at its crime rate.) Incidentally, goes anyone have statistics on how these firearms laws ACTUALLY help reduce the crime rate? (This is an honest question out of my ignorance.)

In fact, I do not have a MAJOR problem with licensing (with strict circumscription) insofar as it is only used to track the guns. I used to be a longstanding card-carrying member of the NRA’s, but quit it owing to its stand on certain issues. It does not mean that I disagree with everything that NRA stands for. I just feel that it is just a behemoth that has become unwieldy for the benefit of its members and the public at large. Some of the posters and readers may think that I am right-wing radical for my views on this topic (Second Amendment), while others may think that I am a left-wing nut for my views on such issues as death penalty, criminality, human rights, etc. Well, I am just a human who refuses to be branded and labeled as either.

Supremacy Claus:

I thoroughly fail to understand your logic; please do enlighten me. You always come across as “gung ho” about many things and your comments are laced (to put it mildly) with violence. Let me ask you this: Have you ever been under fire? Have you ever been actually shot? Have you, or anyone close to you, been accused and convicted of a crime that you know that is unjust? At bottom, you should ask yourself: “What if the shoe were on the other foot?” It is very easy to let one’s emotions out without thinking (a la, shooting from the hip, apropos this topic here), but very difficult to actually understand and go through these circumstances personally. Before you say something, I request that you carefully consider what you are about to say and then do it without any need for violence. You know, the greatest warriors are always afraid of wars. They are the last persons to go to war; but once they do, they do not cower. That is what we need to do. Restraint – in the face of provocation – is very difficult to achieve. That is what distinguishes a warrior and a “wannabe.”

Finally, I was not aware of Congressman Cohen’s bill. I am gratified to learn that somebody in Congress is doing something about this issue. It is a first step in the right direction. The more Congresspeople go to prison, the better we will be in terms of understanding the true nature of crimes and their consequences – some of them just; and others not just at all.

Posted by: John Marshall | Jul 10, 2011 1:37:14 PM

Very good article. Having worked in four federal prisons, I know that the 1st and 4th Amendments of inmates are severely curtailed. The 4th Amendment is restricted after an inmate completes his sentence with post-sentence supervision. Some supervision, as in the case of child molesters, is life-long. Of course if we just executed the dirt-bags there would be no need for supervision.

On another issue. I believe that Latenburg/Schumer/Fienstien et al. will try to take away 2nd Amendment rights through the expansion of the terror watch list.

Posted by: John NRA Lifer | Jul 10, 2011 2:53:21 PM

@John Marshall & Albeed

Guess age is catching up faster than I thought LOL. Actually, I was responding to two comments. The first, John Marshall's "the phrase "rather than the present-continuous sense" should be corrected to read "rather than the present-continuous tense."

The second in which I responded "Like you John, I spent the best part of a 40+ year career in my chosen field as an engineer" should have read "like You Albeed" and was intended as a response to Albeed's comment, "I may not know the last vestiges of "THE LAW", (which is a serious study for those who choose to obstruct the obvious) but as a 30+ year scientist and engineer,"

In any respect John, regarding your comment "if you are an engineer, or a scientist (heck, for that matter, even a medical doctor), litigation counsel will try their damnedest NOT to pick you as a juror", I have heard this before and could very easily see why some lawyers would not want an engineer on the jury. That is, lawyers that are trying to put something over on the jury.

Posted by: Thomas | Jul 10, 2011 4:10:53 PM

no offense josh but nobody who things ANYONE who lives in what is SUPPOSED to be an nation with a REPUBLICAN REPRESENTATIVE govt! should have a vote in what happens there HAS NO BUSINESS LIVING IT INT!

as for the so-called "right to bare arms!" well guess what. IF EVERYONE living here HADN'T HAD THEM! that statement would not have been written since THE REVOLUTION could not have been won without them!

IN FACT if you check the writings of the time you will find that right was put in that document SPECIFICALLY to protect our right to have WEAPONS to protect ourself FROM OUR OWN NEW EXPERIMENTAL GOVT!

Posted by: rodsmith | Jul 10, 2011 4:16:03 PM

sorry should have been

"SUPPOSED to be an nation with a REPUBLICAN REPRESENTATIVE govt! should {NOT} have a vote in what happens there HAS NO BUSINESS LIVING IT INT!

Posted by: rodsmith | Jul 10, 2011 4:17:40 PM

John: My aim is to help the lawyer, now in utter failure. The failure is in all directions. They allow 90% of serious crimes to go unanswered. When they have the person, at some intolerable rate, they have the wrong guy. They deter, but only decent people, not criminals. They are in utter failure. So all your points make my point. I can discuss personal experiences, but people would use them to dismiss these substantive criticisms of the lawyer profession, and they do not mot matter in the huge statistics of failure.

Why not the same intellectual exercise for you? I am going to guess that you are a government dependent worker, whose job depends on the protection of the criminal, and that you do better during high crime rates. Why don't you think about the 20 million crime victims a year, the 5 million victims of violent crime, the 17,000 murder victims, 2000 of whom are strangers killed by paranoid schizophrenics? Your protection of the criminal is devastating to large areas as big any storm or tsunami, including death, destruction, and elimination of real estate values.

John: I have tried to find alternatives to the lawyer management of the criminal law. No other profession wants it. We are stuck with the lawyer profession, in utter failure. The only thing left is self help. If the public wants to end crime, it has to do that itself.

Thank you for understanding where I was coming from. (Well, almost, although not quite!) Hey, I do understand your points. I really do; the only thing that we diverge on is the possible pathways.

No, I am not a government-dependent worker, by any stretch of the imagination. I doubt that I will ever be dependent on our government for anything, especially in the light of the economic crisis and the impending doom of social security, Medicare, etc. In fact, I have never even as much as collected unemployment for a single day, although I must have paid a huge sum toward that fund over the last few decades.

While I understand and share in your anger about crime victims, I am afraid that your anger is misdirected and misplaced. My goal also is to reduce crime rate. My opinion is that the reduction in crime rate could only be achieved by the methods that involve humanistic approach, rather than just retributive justice. By the way, I take it that you have not read some of my posts on lawyers and their lack of empathy. (Perhaps, you did.)

Posted by: John Marshall | Jul 10, 2011 5:30:33 PM

Thomas:

I figured that you were referring to Albeed. (:-))

Posted by: John Marshall | Jul 10, 2011 5:31:21 PM

John: If you are not a government dependent worker, your arguments are not in your self interest and are in good faith. The lawyer's argument are self-dealing without disclosure of such conflict of interest. That makes lawyer arguments in bad faith.

I oppose retribution as immature. It comes from a book written by Iraqi tribal people, the Bible, and violates the Establishment Clause as much as any attempt to impose Sharia on this secular nation. Very intelligent, Harvard educated, devout religious people are unable to see that. If any lawyer mentions retribution in a real world tribunal, that is an improper motive. A mistrial should be declared and all costs should be assessed to the personal assets of any lawyer with the improper motive, including the judge.

The sole mature and effective goal of the criminal law is incapacitation. Crime will end when the criminals are ended. At this time, there are a million violent offenders, pretty much the current prison population. These should be executed, followed by about 10,000 people a year, the violent birth cohort. They can help themselves any way they wish, by treatment, by self isolation, by religion, but once their count of violence reaches 3, they have to go.

This is an utilitarian view that will not discount costs to crime victims just because the lawyer makes no money off them.

From the nature of the discussion I fear that the definition of Right has already been changed sufficiently to suit the purposes of those who would deny it.

Posted by: tim rudisill | Jul 11, 2011 6:49:10 AM

Supremacy Claus:
It appears that you and I ultimately want the same thing. However, I view the purpose of criminal law as the reduction (if not elimination) of crimes and remediation of the wrongs, where elimination is not possible., or a better approach. In defense of lawyers, there are indeed some who would go to the ends of this earth to do the right thing; but they are few and far between.

Tim Rudisill:

Unfortunately, what you are saying is absolutely true.

Posted by: John Marshall | Jul 11, 2011 11:27:21 AM

Fighting old battles tends to distract attention from new and potentially more worrisome ones. From what I am hearing, the Administration -- nervous about the fallout from Operation Fast and Furious, and wanting to nudge the focus elsewhere -- is preparing yet more gun regulations. Whether they would be aimed at previously convicted felons I don't know, but it's very hard to believe such persons would be exempt.

Stay tuned.

Posted by: Bill Otis | Jul 11, 2011 12:43:57 PM

John: Lawyers are human. So iron lung specialists should not set polio vaccination policy, since vaccination will end their job. Lawyers regulate themselves, and have dealt themselves unlawful, unfair, and unjustified immunities.